The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER DENYING MOTION TO DISMISS (Docket no. 7)
Petitioner Regonald D. Phillips, a State prisoner incarcerated at Pelican Bay State Prison, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the execution of his sentence. In an Order dated November 22, 2004, the Court construed Petitioner's claim as one "that State prison officials have computed the time credits to which he is entitled improperly, resulting in the miscalculation of his release date and him being held beyond the expiration of his sentence." The Court found Petitioner had alleged exhaustion of State remedies, and directed Respondent to show cause why relief should not be granted. Respondent has filed a motion to dismiss the petition on the grounds that (1) Petitioner has failed to exhaust his State remedies; (2) the petition is barred by the statute of limitations; and (3) the petition fails to allege sufficient facts to state a claim upon which relief may be granted. Petitioner has filed an opposition to the motion to dismiss. Respondent has not filed a reply. For the reasons discussed below, the motion to dismiss is DENIED.
The following factual and procedural background is based on the allegations in the petition, Respondent's motion to dismiss and Petitioner's opposition, and the exhibits attached to the pleadings.
Petitioner was convicted of robbery and false imprisonment and on July 27, 1991, he was sentenced to twenty years and four months in State prison. On appeal the convictions were affirmed but the abstract of judgment was corrected to reflect a sentence of seventeen years and eight months. In the present petition Petitioner does not challenge the validity of his conviction. Rather, he challenges the execution of his sentence, alleging that prison officials have miscalculated his release date and that he is being held beyond the expiration of his sentence.
The facts underlying this claim are not ascertained easily from the petition or attached exhibits. However, a number of the exhibits do pertain to a loss of credits suffered from April 8, 1992 to October 9, 1995, when Petitioner was housed in the Security Housing Unit (SHU) at High Desert State Prison. Before he entered the SHU, his earliest possible release date (EPRD) from prison was in 2002. After his release from the SHU, however, his EPRD was in 2004. When Petitioner challenged the recalculation, prison officials explained that while in the SHU he was in D-2, or "zero earning," status. Thus, he earned only 118 days of credits, rather than the approximately 915 days of credits he could have earned had he not been in the SHU during that more than three year period. Because the earlier pre-SHU calculation of his EPRD took into consideration the projected credit earnings that he could have earned had he not entered the SHU, Petitioner "lost" approximately 797 days off of his pre-SHU release date calculation, bringing his EPRD to 2004. Petitioner was told further that credits lost based upon a SHU term cannot be restored. Petitioner pursued this claim through the final level of appeal, where it was denied on May 17, 1996.
Petitioner then pursued an appeal alleging the miscalculation of his EPRD and seeking a hearing to recalculate it. On February 21, 1997, at the Director's Level of Review, Petitioner was granted a Computation Review Hearing. Subsequent appeal records indicate that Petitioner's file was audited on April 9, 1997, and December 8, 1997, and due to the discovery of erroneous credit calculations his EPRD was adjusted. The Computation Review Hearing took place on January 13, 1998, and Petitioner's revised EPRD of May 11, 2002, was found to be correct. However, Petitioner maintained this calculation was incorrect and appealed the decision, eventually filing a State habeas petition in Sacramento Superior Court on May 27, 1999. The State court's ruling on the petition is not noted in the present petition.
Thereafter, Petitioner continued to file appeals. In an informal level decision dated February 4, 2002, the reviewing officer noted that Petitioner "recently had 316 days restored," and that certain disciplinary charges had been dismissed. Petitioner was told his EPRD at that point was December 2, 2005.
According to a Director's Level Appeal Decision dated June 27, 2002, Petitioner received another Computation Review Hearing on March 15, 2002, where it was determined that his release date calculation was correct, and that the administrative remedies available to Petitioner within the CDC had been exhausted.
Petitioner then pursued State habeas corpus relief. A review of the petitions shows almost identical allegations to those in the present petition, including assertions that over a period of almost twelve years Petitioner had worked for twenty-eight months but did not receive adequate credits for that period, that SHU placements in 1996 and 2001 resulted in erroneous credit loss, and that over time he has lost more than 1,500 credits which should have been restored. On March 5, 2003, the California Court of Appeal denied his petition summarily without citation, and on January 22, 2004, the California Supreme Court denied his petition summarily, citing In re Swain, 34 Cal.2d 300, 304 (1949), and In re Clark, 5 Cal. 4th 750 (1993).
Respondent argues that the petition must be dismissed because it is unexhausted. It is not clear from the face of the petition that this is so, however. Although Respondent cites statements made by Petitioner in which Petitioner allegedly concedes nonexhaustion, the allegations and exhibits summarized above show that Petitioner's claims have been reviewed at the Director's Level of Review and also were presented to, and denied by, the California Supreme Court. The Court is unable to say at this time that the claims are unexhausted. Accordingly, the motion to dismiss on this ground is denied.
Respondent also argues that the petition is time-barred under the one-year statute of limitations for federal habeas corpus petitions. Respondent's reasoning is based on the fact that Petitioner's challenge to the miscalculation of credits following his first SHU term was denied at the Director's Level of Review in 1996; therefore, Respondent argues that Petitioner was required to file his federal habeas corpus petition within one year of that denial under 28 U.S.C. § 2254(d)(1)(D). However, a review of the petition shows that Petitioner's challenge to the execution of his sentence is not limited to one instance of alleged miscalculation of credits. His clear and consistent complaint is that his credits have not been assessed correctly for a number of years, and he has raised these claims in several administrative appeals and State habeas ...